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ELCDismissedELC Appeal No. E020 of 2024· [2026] KEELC 5157 (KLR)

Machere v Njoka & another (Environment and Land Appeal E020 of 2024) [2026] KEELC 5157 (KLR)

Environment and Land Court of Kenya
23 July 2026
LLL. T. Lewa
3,855 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court ruled that even land registered in one person's name can still belong to the whole family if it was given for them to share.

What this practically means

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Executive summary

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This is a first appeal by Kinyua Njoka Machere against the judgment of Hon. Cheruto C. Kipkorir, Principal Magistrate, delivered on 13th March 2024 in Kerugoya E&L Case No. E024 of 2023. The respondents, siblings of the appellant, had sued claiming that the appellant held parcels Inoi/Kamondo/2202 and 2540 in customary trust for himself and them, and sought an order compelling transfer of parcel 2202. The trial court found the trust proved and dismissed the appellant's counterclaim, ordering each party to bear their own costs. The appellant's twelve grounds of appeal contended that the parcels were acquired by transmission through succession causes and that no trust was pleaded or proved. On appeal, L.T. Lewa J. framed two issues: whether the respondents proved a customary trust, and whether the counterclaim was proved. The court restated the role of a first appellate court and applied the Supreme Court's criteria for customary trusts in Issack M'Inanga Kiebia v Isaaya Theuri M'Lintari, together with Sections 28 of the Land Registration Act and 107 and 109 of the Evidence Act. Re-evaluating the evidence, the court found the uncles gave the appellant the land because he was the only son of their sister Nancy Macere, meaning he held it in trust for his siblings. The chief's evidence corroborated an agreement to transfer parcel 2202. The court agreed with the trial court that a customary trust was proved on a balance of probability and that the counterclaim was not proved. The appeal was dismissed with costs to the appellant. The prior decision was affirmed.

Key legal issues

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01

Whether the suit parcels were held by the appellant in a customary trust for the respondents

Holding

The court affirmed the trial court's finding that a customary trust was established on a balance of probability; the appellant was given the land because he was Nancy Macere's only son and therefore held it in trust for his siblings.

Reasoning

Applying the Supreme Court's criteria in Issack M'Inanga Kiebia v Isaaya Theuri M'Lintari, the court found the land was family land, the respondents belong to the family, and the appellant was registered only because he was the sole son. Evidence of the area chief corroborated the agreement to transfer the land, and it was far-fetched that the uncles would gift the land to the appellant unconnected to his mother.

p. 22
02

Whether the appellant proved his counterclaim

Holding

The counterclaim was correctly dismissed as it was not proved to the required threshold.

Reasoning

The court agreed with the trial court that the appellant's claim of absolute ownership by transmission could not stand given the uncontroverted evidence that he received the land because he was Nancy Macere's only son, creating a customary trust in favour of his siblings.

p. 23

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence and arrive at its own independent conclusions.
  • A customary trust is an unregistrable overriding interest against a registered title under Section 28 of the Land Registration Act.
  • The burden of proving a customary trust lies on the party alleging it.

Court orders

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  1. 1.The appeal is dismissed for lack of merit
  2. 2.The appellant shall bear costs of the appeal
  3. 3.It is so ordered

Authorities

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Legislation

  • Land Registration ActSection 28
  • Evidence ActSections 107 and 109

Cases cited (6)

  • Peter Ndungu Njenga vs Sophia Watiri Ndungu (2000) eKLR
    (2000) eKLR
  • Twalib Hatayan Twalib Hatayan & Another vs Saggar Ahmed Al-Heidy & Others (2015) eKLR
    (2015) eKLR
  • Hearbeat Limited v Ng'ambwa Hearbeat Community Children's Home & Rescue Center (2018) eKLR
    (2018) eKLR
  • Susan Munyi v Keshar Shiani (2013) eKLR
    (2013) eKLR
  • Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR
    [2013] eKLR
  • Issack M'Inanga Kiebia v Isaaya Theuri M'Lintari & another (2018) eKLR
    (2018) eKLR
On appeal from
Chief Magistrate's Court at Kerugoya
Kerugoya PMC E&L Case No. E024 of 2023
Jurisdiction invoked
First appellate jurisdiction over appeals from the Environment and Land Magistrate's Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Machere v Njoka & another (Environment and Land Appeal E020 of 2024) [2026] KEELC 5157 (KLR)", Case Analysis (2026). ELC Appeal No. E020 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5157/eng@2026-07-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.